> Reported Decision : 125 LGERA 273 Land and Environment Court of New South Wales CITATION : Harden Bergia Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 115 APPLICANT: Harden Bergia Pty Limited PARTIES : RESPONDENT: Baulkham Hills Shire Council FILE NUMBER(S) : 10858 of 2002 CORAM: Bignold J KEY ISSUES: Question of Law :- preliminary determination in planning appeal-whether development is designated development LEGISLATION CITED: Environmental Planning Assessment Act, s 97 Environmental Planning and Assessment Regulation 2000, Schedule 3 Maxwell v Hornsby Council (2002) 120 LGERA 186; Momentum Architects Pty Limited v Hornsby Shire Council (2002) 123 LGERA 207; CASES CITED: Logan Bald Partnership and Byron Shire Council (2002) 123 LGERA 225; Food Barn Pty Ltd v Solicitor General (1975) 32 LGRA 157; Penrith City Council v Waste Management Authority (1990) 71 LGRA 376 DATES OF HEARING: 20/12/2002 EX TEMPORE JUDGMENT DATE : 12/20/2002 APPLICANT: Mr R Robertson SC SOLICITORS Davidsons LEGAL REPRESENTATIVES: RESPONDENT: Mr C Drury, Solicitor SOLICITORS Phillips Fox JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Matter No . . 10858 of 2002 Coram : Bignold J 20 December 2002 HARDEN BERGIA PTY LIMITED Applicant v BAULKHAM HILLS SHIRE COUNCIL Respondent JUDGMENT 1. In pending class 1 of proceedings involving an appeal pursuant to the Environmental Planning Assessment Act 1979, s 97 (the EP&A Act) against the Council's decision refusing development consent to a development of land situated at Old Northern Road, Glenorie, the Council has raised for determination in advance of any hearing on the merits of the case two preliminary points of law. These are (i) whether the proposed development, the subject of these proceedings, comprises "designated development" for the purposes of the EP&A Act; and (ii) if the answer to the first question is in the affirmative, has the development application subject to those proceedings been properly made in that it has not been accompanied by an Environmental Impact Statement as required by s 78A of that Act? 2. The matter has proceeded on the basis of an Agreed Statement of Facts (Exhibit A). That statement describes in par 3 the development site which is quite a large site (some 11 hectares) situate at Glenorie. In par 4, the statement describes the development application in detail as follows:- the demolition of buildings on the site, removal of trees, subdivision of the site into two lots and the erection of 26 residential units on the proposed western allotment (I need not give the details of the unit sizes) and the provision of mixed use development on the other lot comprising nine shops and a supermarket three above shop one-bedroom dwellings and two above shop offices, with a total floor space of 154 m2 and 139 car parking spaces. 3. The development application was supported by a statement of Environmental Effects which includes Appendix I, (being the letter from Patterson Britton & Partners describing the conceptual sewer layout). The layout or aspect of the proposed development is more particularly set out in the document (Exhibit B) in which the consulting engineers, give advice as to certain engineering matters, including water and stormwater (which are not in contention for today's purposes) and finally sewerage, that being dealt with at pp 3 and 4 and the accompanying diagram entitled "Conceptual Sewer Layout". 4. It is common ground that the development application was not supported by an Environmental Impact Statement (EIS) and that if one were required it is not disputed that the development application is legally deficient by the absence of any accompanying supporting EIS. 5. The matter in real contention however turns on the question first asked, namely whether the development is development that comprises designated development. I have been greatly assisted by detailed submissions advanced on behalf of the Council and the Applicant in reply which traverse many cases bearing on the question and most particularly three recent decisions in this Court in which the same question that is before me on the facts of each of those cases has also arisen. In the first of those, Maxwell v Hornsby Council (2002) 120 LGERA 186 a decision of Pain J handed down on 3 July 2002, her Honour held that a large scale proposed retirement village with nursing home and community centre etc, incorporating its own sewerage treatment plant was relevantly to be regarded as development for designated development by virtue of that last mentioned component of the development, namely the sewerage treatment plant which she describes in the judgment as falling within the declaration of designated development that is contained in Schedule 3 to the Environment Planning Assessment Regulation 2000 cl 29 (the Regulation). 6. In that case, in a reasoned judgment, her Honour refused to apply earlier decisions, including decisions of this Court, based upon earlier versions of the Regulation containing the declaration or designation of designated developments, concluding that those decisions were now distinguishable because they were based upon a form of the Regulation in Schedule 3 describing or delineating designated development which had been in her Honour's view materially changed in the expression of the counterpart provision in Schedule 3 to the 2000 Regulation. 7. Soon after her Honour's decision, the matter has come before different members of the Court still in more recent times and in the two decisions that have been carefully analysed again in the parties' competing submissions, namely that of Talbot J in Momentum Architects Pty Limited v Hornsby Shire Council (2002) 123 LGERA 207, a decision handed down on 1 November 2002 and very recently, the decision of Cowdroy J, in Logan Bald Partnership and Byron Shire Council (2002) 123 LGERA 225, their Honours have not followed Pain J's decision in Maxwell preferring or considering themselves bound by earlier decisions of the Court of Appeal in cases like Food Barn v Solicitor General (1975) 32 LGRA 157 which expresses the conventional approach to characterisation of developments for the purposes of planning law generally. But the same approach was acknowledged to be apposite by the later decision of the Court of Appeal in Penrith City Council v Waste Management Authority (1990) 71 LGRA 376 in determining whether a particular development was designated development for the purposes of the EP&A Act, and the Regulation in force at that time (which would have been the original Regulation made in 1980). 8. Council's Solicitor has argued persuasively that I should embrace the approach adopted in Maxwell because her Honour's judgment rightly acknowledges, so the argument went, the significant difference in the wording of the relevant provisions of the Regulation declaring developments to be designated development. Her Honour's judgment contains a detailed analysis of the earlier versions of the Regulation declaring designated developments compared with the present expression and much significance was attached by her Honour to the fact that in the current format and form, the Regulation declaring designated development the words in earlier versions, namely development "for the purposes of or the types of" was omitted. 9. Notwithstanding the argument skilfully advanced I am of the view that her Honour read more into the change of language in the Regulation than should legitimately be read into it and in truth I would think that the change in language is really little more than a tidying up of perhaps a loose or unnecessary drafting style. 10. What is more significant in my respectful opinion than the inclusion or omission of the words "for the purposes of or the types of" in the Regulation declaring designated development is the fact that conventionally planning instruments imposing controls on development do so by reference to the notion of "purposes". A moment's reflection would justify that approach and it is simply this, that the term "development", which is the crux of the system of control imposed by the EP&A Act is defined in a very broad sense, namely "the erection of a building, a use of land, the demolition of a building, etc": see the definition contained in the EP&A Act, s 4(1). 11. When traditional controls on the carrying out of development expressed in planning instruments are expressed in terms of what development is permissible, what development is prohibited and what development may be consented to, it is not only a matter of niceties of language but rather necessary that there be added to that form of control the concept of "development for the purposes of" eg dwelling houses, industries, etc because otherwise the truncated expression that development is permitted eg dwelling house industry etc—does not flow nearly so clearly or obviously or fluently than it does when the term "for the purposes" is added to the permitted categories of development. 12. Accordingly, it is the invariable need for development to be classified or categorised "for a purpose" prescribed by the relevant planning instrument as either being the permissible or not permissible. And that continuing language and doctrine of "purposes of development" will always be necessary whenever planning instruments control development by reference to categories of "permissible" and "prohibited" and "consentable" development. 13. Accordingly, the notion of "development for the purposes of" etc is critical for sections of the EP&A Act like s 76, and s 76A but really carries no particular significance whatsoever, in my respectful opinion, when the expression appeared in the Regulation declaring what developments were designated development. 14. The fact that the words no longer appear in the Regulation simply means that the expression is the truncated, somewhat elliptical one but inevitably the meaning to be given to the content of the Schedule declaring designating development necessarily implies into it development "for the purpose" of etc. Accordingly, the omission from the Schedule 3 to 2000 Regulation, in my view, carries no significance whatsoever and with great respect I find that I cannot agree with her Honour's reasoning or approach in Maxwell. 15. Council's Solicitor urged faithful attention and adherence to the words of the statute. There can be no demur from that salutary exhortation. The difficulty in my opinion with the decision in Maxwell is that it attributes far too much implied significance to the absence of words which to mind carry no particular significance and are otherwise implied, notwithstanding their express deletion. 16. But another difficulty, with great respect to her Honour's judgment, has been exposed in the reasoning of the later decisions of Talbot J and Cowdroy J that have been referred to and that is that it is necessary to categorise development and in that categorisation process it is well established that the categorisation properly accommodates the doctrine of "dominant and servient purposes" and "dominant and ancillary purposes". 17. The doctrine draws a line between interdependent and independent separate uses but otherwise categorisation of development for land uses has applied that sensible and workable approach for the last 50 years in New South Wales. Its abandonment in Maxwell because of the perceived significance of the change to the text or the preface to the text of Schedule 3 to the 2000 Regulation involved, in my opinion, and with great respect, a two-fold error—firstly by attributing more to the textual change than is justified and secondly by abandoning the appropriate and settled principles for characterisation or classification of development in terms of "purpose" which accommodates the doctrine of "dominant", "subsuming", "subservient" and "ancillary" purposes. 18. For the foregoing reasons I must reject the Council's submission urging me to apply the same approach as was taken in Maxwell. In my respectful judgment, for the reasons that I have given, the later decisions of Talbot J and Cowdroy J are to be preferred. 19. In so concluding, I have reached the ultimate conclusion that the proposed development is not designated development but is development for the mixed purposes namely residential, commercial and retail as set out in the Statement of Agreed Facts. My conclusion in that behalf fully answers both the Council's questions—Question 1 in the negative and Question 2 does not arise because it depended upon an affirmative answer to Question 1. It is unnecessary for me to deal with the additional submission urged upon me by the Applicant to the effect that the arrangements for the treatment or collection and storage and ultimate disposal by pump-out system of effluent in connection with the development does not relevantly fall within cl 29 of the Regulation when it designated development by reference to "sewage treatment systems". That matter, interesting though it is, does not need to be answered and can be reserved for another occasion. 20. For the foregoing reasons, my formal determination is— 1. Question 1 be determined in the negative. 2. Question 2 need not be answered in the light of my answer to Question 1. 3. Leave granted to obtain the usual directions and hearing dates for the hearing of the appeal on the merits. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.